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Grievance Committee Manual

Disclaimer: The Grievance Committee Manual was developed in 2002 by the Office of Legal Affairs. The Manual is intended to be a convenient reference tool for faculty committee members, wherein most topics of particular interest to faculty grievances are contained. The Official policy governing faculty grievances can be found in the UNC Board of Governors Policy Manual and NC State University Policies, Regulations and Rules

First Issued: 01/28/2002
Revised: 06/24/2002
08/29/2003
09/04/2006
01/07/2008

Conducting Faculty/EPA Grievance Hearings
A Guide for Grievance Committees and Grievance Committee Chair

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TABLE OF CONTENTS

I. Introduction

II. The Grievance Structure

III. Roles of the Participants

A. Grievant

B. Respondent

C. Observers

D. Committee Counsel

E. Grievance Committee Chair

F. Grievance Committee

IV. Steps in the Grievance Process

A. Initial Meeting of the Committee

1. Reviewing of Grievance Process and Role of Committee Members and Chair

Grievance Process
Role of Committee Members
Conflicts of Interest
No Ex Parte Communications

2. Reviewing the Grievance Statement to Determine Jurisdiction

Is the grievance filed against a proper party?
Does the grievance state a grievable matter?
Was the grievance timely filed?
Has the grievant followed the preliminary steps requisite to filing the grievance?

B. The Pre-hearing Conference

Conflicts of Interest
Jurisdictional Issues
Issues in Dispute
Agreed Upon Statement of Facts
Procedural Decisions

C. The Grievance Hearing

Opening Statements
Presentation of Grievant's Case
Presentation of Respondent's Case
Closing Statements

D. Deliberations

Role of the Chair
Resolving Conflicts in Testimony

E. Writing the Decision

Composition of the Grievance Committee
Process Followed by the Committee
Identification of the Parties
Statement of the Grievance
Findings of Fact
Recommendations
Minority Report

F. The Official Record

Grievance Statement and Respondent's Response
Correspondence
Transcript
Exhibits
Excluded Evidence

G. Discharge of the Committee and/or Further Proceedings

APPENDICES

I. NCSU Grievance Procedure for Faculty and EPA Professional Employees

II. UNC General Administration Memorandum: The Role of University Counsel in the Grievance Process, dated August 18, 1994

III. Chair's Checklist

1. Chair's Checklist of Tasks for the Initial Meeting
1.1 Before the Initial Meeting
1.2 At the Initial Meeting
1.3 After the Initial Meeting

2. Chair's Checklist of Tasks for the Pre-Hearing Conference
2.1 Before the Pre-Hearing Conference
2.2 At the Pre-Hearing Conference
2.3 After the Pre-Hearing Conference

3. Chair's Checklist for the Hearing
3.1 Before the Hearing
3.2 At the Hearing
3.3 After the Hearing

I. Introduction

The purpose of this manual is to provide faculty/ EPA professional grievance Committees and Chairs with basic information on how to conduct grievance hearings that are efficient, effective and fair to all parties and to help Committees hear and decide grievances in a manner that increases the likelihood that their decisions will be upheld.

This manual covers specific procedures contained in the University's faculty and EPA grievance policy and procedure. [1] Topics include the roles of the respective participants in the grievance (including the roles of grievance Committee members, grievance Committee Chair, grievant, respondent and attorneys/observers), the purpose of the pre-hearing conference, the conduct of the grievance hearing, Committee deliberations and reaching a decision, drafting a well written decision and recommendation, and compilation and transmittal of the official grievance record. Checklists are provided for each step of the process and issues that commonly come up in grievance hearings are addressed.

Before proceeding with any grievance, Committee members and Chairs should be thoroughly familiar with the University's Grievance Procedure for Faculty and EPA Professional Employees. See Appendix I.

II. The Grievance Structure

A typical grievance involves a grievant (the person who files the complaint and initiates the administrative grievance process), a respondent (the individual responsible for the action that has resulted in the grievance), a hearing Committee who hears the grievance and makes a recommendation, and the administrative officer responsible for the ultimate determination of the grievance.

The grievant and respondent ('the parties') are normally in an adversarial posture and while the grievance procedure calls for certain exchanges of information between these parties, the grievant and respondent interact primarily with the grievance hearing Committee and Chair. While the grievant and respondent may each have a third party observer during the process (who may or may not be an attorney), such individuals have no active role in the grievance process.

The grievance procedure provides for a three member hearing Committee that hears and decides the grievance. A non-voting Chair presides over the process. The Chair makes all procedural decisions, corresponds with the Committee and the parties, deals with hearing logistics, and compiles and transmits the record of the hearing along with the Committee's decision to the Chancellor for decision.

The grievance hearing consists of the following phases: 1) initial meeting of the grievance Committee, 2) the pre-hearing conference with the parties, 3) the hearing of the grievance, 4) deliberations by the Committee and 5) writing the decision. The initial meeting provides an opportunity for the Chair to acquaint Committee members with the grievance process and answer any questions about the process before the pre-hearing conference with the parties. At this initial meeting the Committee reviews the grievance petition and any request to dismiss the grievance to determine whether the grievance Committee has jurisdiction over the grievance. If the grievance is not dismissed for lack of jurisdiction, the initial meeting is followed by a pre-hearing conference, the grievance hearing, deliberations and writing of the Committee decision. Committee decisions are forwarded to the Chancellor in the form of a recommendation.

In certain cases, the Chancellor's decision may be appealed to the Board of Trustees, and to the President and/or Board of Governors. In addition, an aggrieved individual may seek judicial review of the final institutional decision. It is therefore important to ensure that the process that is followed is fundamentally fair to all parties and complies with university procedures.

III. Roles of the Participants

A. The Grievant

The grievance process is initiated by a faculty or other EPA professional (hereinafter 'grievant') who must file a timely written grievance petition with the Chair of the faculty. The petition must set forth the exact nature of the grievance, the identity of all parties against whom the grievance is filed, the redress sought, and permission for the grievance Committee to examine grievant's personnel file for the purpose of resolving the grievance.

The grievant must follow certain preliminary steps as a jurisdictional prerequisite to the formation of the grievance Committee. No grievance may be entertained unless the grievance is filed within sixty calendar days of the decision forming the basis for the grievance and the grievant has attempted without success to resolve the grievance with his or her department Chair and dean. (Grievance Procedure, Section 3). The matter must also be within the scope of the grievance procedure.

The grievant bears the burden of establishing the jurisdictional grounds for the grievance and the burden of proving by a preponderance of the evidence grounds for the grievance. A preponderance of evidence is defined as that evidence which when fairly considered produces the stronger impression and is more convincing as to the truth when weighed against other opposing evidence. Preponderance of evidence is not determined by the number of witnesses or the quantity of documentation but rather by the greater weight of all the evidence when considering the opportunity for knowledge, the information possessed and the manner of testifying.

If the grievant does not follow the pre-requisites set forth in the grievance procedure or otherwise meet the requisite burden of proof, the Committee may dismiss the grievance

B. The Respondent

A grievance may be brought only against an administrator (the"respondent") who has rendered a decision adversely effecting an individual's professional or academic capacity. Adverse effect means a decision that has harmed the grievant. Once the grievance Committee and Chair have been selected to hear the grievance, the respondent is provided the opportunity to respond in writing to the grievance. The response joins the issue and together with the grievance statement outlines the respective issues in dispute between the two parties.

C. Observers

The grievance procedure permits each party to have a third party observer who may attend the pre-hearing and hearing. An observer has no active role in the process but may advise a party so long as the grievance process is not interrupted. An observer may be a member of the campus community, a friend or relative, or an attorney. The grievance procedure has no limitations on who may be an observer.

Under the grievance procedure, attorneys for the parties have no active role in the process. If a party is represented by an attorney, the attorney may attend the hearing but may do so only in the capacity of an observer. An observer/attorney may provide advice to a party, prepare correspondence and other documents for a party, and may be present during the proceedings so long as their presence does not disrupt the hearing process.

D. Committee Counsel

The Committee may have an attorney assigned by the Vice Chancellor and General Counsel
to advise the Committee on procedural matters related to the grievance. If counsel is desired, the Chair of the Committee makes arrangements for the assignment thru the Office of Legal Affairs. Committee counsel may be present at all stages of the process, including Committee deliberations. (See Appendix II, GA memorandum addressing the role of institutional counsel in the grievance process.)

E. The Grievance Committee Chair

The grievance Committee Chair convenes and presides over all meetings of the Committee and at the grievance hearing. The Chair makes all procedural rulings regarding the grievance process and exercises complete control over all stages of the grievance hearing. The Chair provides information to the Committee and participants about the grievance and grievance process, corresponds with the parties on behalf of the Committee as appropriate, schedules all hearing dates and meetings, makes all procedural rulings regarding the grievance process (including the number of witnesses who may be called by a party, the length of each party's presentation, the admissibility of evidence, etc.) and otherwise exercises complete control over all stages of the hearing process. The Chair is responsible for ensuring that the Committee's work is completed in a timely manner. The Chair also is responsible for preparing a written report of the Committee's findings and recommendations and compiling the official record to the Chancellor.

Pursuant to the University's grievance procedure, Committee Chairs have the following
responsibilities:

1.) convene and Chair all meetings of the Committee and the grievance hearings;

2.) handle all logistics related to the grievance process (arrange for recording and/or transcriptions of the hearing, counsel for the Committee, conference rooms for the hearing, etc.);

3.) schedule Committee meetings and grievance hearings and notify parties, Committee members and Committee counsel of location and dates (the first date no later than four weeks after receipt of the respondent's response);

4.) draft all correspondence on behalf of the Committee;

5.) forward to the Office of Legal Affairs amended grievances and notices of all scheduled meetings;

6.) ensure the timely and orderly process of the grievance (attempting to complete the hearing within six weeks);

7.) instruct the Committee on jurisdictional and other related matters; make all procedural rulings (including what evidence is admissible, whether to permit a party to introduce evidence that has not been previously disclosed, etc.);

8.) keep a record of all meetings held and communications and correspondence with the parties and members of the Committee;

9.) prepare a written report of the Committee's findings and recommendations;

10.) compile the official record and transmit the record and Committee's decision as specified in the procedure;

11.) convene and Chair any meetings or hearings required by a remand of the grievance

F. The Grievance Committee

The Grievance Committee is a hearing body composed of three members with delegated authority to hear grievances. The Committee's role is to determine whether the grievance presents a matter that is within the jurisdiction of the grievance Committee and if so, to hear the grievance. The Committee is responsible for making written findings of fact and recommendations with regard to the grievance. A Grievance Committee has no power to reverse an administrator's decision. It's authority is only to recommend a reassessment of the decision if it finds that the decision was reached improperly or unfairly.

The Grievance Committee acts as the agent of the Board of Trustees to hear and determine grievances brought by a faculty or EPA professional against an administrator. As a result of their delegated authority, members of the Committee must at all times maintain a neutral status vis-à-vis the parties to the grievance. Indeed, as a matter of due process, Committee members must be fair and impartial decision makers. While panel members are appointed from the grievant's constituency, this should not affect the Committee member's conduct or attitude in serving on the Grievance Committee. To be a fair and impartial decision maker, a Committee member should keep an open mind and not presume that either party to the grievance is right or wrong.

The Committee's role is to make a decision based on the evidence presented by each party. To maintain appropriate neutrality and accord due process to both grievant and respondent, ex parte communications on matters of substance related to the grievance must not take place between the Committee and a grievant and/or respondent. (Ex parte communications are those that involve only one party without the presence or knowledge of the other party.) Neither the Committee Chair or Committee members may solicit or hear evidence outside of the presence of the parties and all communications to a party by the Chair or Committee members must take place in meetings (or phone calls) at which both parties have been provided the opportunity to be present or through written correspondence sent to each party.

Pursuant to the University's Grievance Procedure, Committee members have the following responsibilities:

1.) attend the initial orientation meeting, pre-conference hearing and all scheduled hearing dates;

2.) make preliminary determinations about whether the grievant has presented a matter within the jurisdiction of the Grievance Committee or, if not, whether the grievant should be allowed to amend the grievance or the grievance should be dismissed;

3.) carefully listen and review all testimony and documentary evidence presented during the hearing;

4.) weigh the credibility of the evidence, make specific findings of fact and determine whether the grievant has established the charges;

5.) assist Chair in finalizing the written report of the Committee's decision, submitting a minority report if necessary;

6.) consider any matter remanded to the Committee by the Chancellor and assist the Chair in preparing a response to any adverse decision of the Chancellor, if deemed desirable or necessary by the Committee.

IV. Steps in the Grievance Process

The grievance process consists of the following phases: 1) initial meeting of the Grievance
Committee, 2) the pre-hearing conference with the parties, 3) the hearing of the grievance, 4) deliberations by the Committee and 5) writing the decision. For the convenience of the Committee Chair, Appendix II contains various checklists of functions performed by the Chair for the various stages in the grievance process.

A. Initial Meeting of the Committee

The work of the Committee begins with an initial meeting of Committee members convened by the Chair of the Faculty Grievance Committee. The Chair should conduct a brief orientation to ensure that the members of the Committee have received the grievance, that they are familiar with the grievance procedures and that no member has any conflicts of interest that would prevent the member from serving on the Grievance Committee. After this orientation, the Committee's task is to review the grievance to determine whether the grievance is to go forward or be dismissed.

1. Review of Process and Role of Committee Members and Chair. At this initial meeting, the Chair of the Committee should briefly review the grievance process and the roles of the Committee and the Committee Chair. The following matters should be addressed:

1.1 Discussion of the Grievance Process. The Chair should inquire as to whether the Committee has received/reviewed a copy of the grievance procedures, the grievance petition, and a request for dismissal from the respondent. The Chair should point out the steps in the grievance process and the responsibilities of the Committee, including the Committee's responsibility at this first meeting to determine whether the Committee has jurisdiction over the grievance. Questions about the process may be solicited and responses provided.

1.2 Role of Committee Members. The Chair should remind Committee members of their responsibility to render a fair and impartial decision based solely on the evidence before them. To ensure a fair and impartial decision no member of the Committee should have a conflict of interest, no ex parte communications should occur, and decisions must be based solely upon evidence introduced at the hearing. If any member of the Committee has a potential conflict of interest, it should be disclosed at this meeting. The matter may be resolved by recusal of the member or reserved for discussion with the parties at the pre-hearing conference.

1.3 Conflicts of Interest. A conflict of interest is a relationship to a party or particular knowledge of the grievance that would prevent a person from deciding the case solely on the basis of the evidence presented at the hearing uninfluenced by matters of personal interest or other factors. Committee members and the Chair must be able to make decisions uninfluenced by personal interest or familiarity with the parties, witnesses, facts or situation related to the grievance.

A personal interest in the grievance, i.e., one in which a member stands to gain or lose personally by the Committee's decision, constitutes an automatic disqualification from service and the member should immediately withdraw from further service on the Committee. On the other hand, prior knowledge of some general facts or a personal collegial relationship to a party or potential witness does not automatically constitute a conflict of interest. If the knowledge relates to key testimony in the grievance or the relationship is more than collegial, it is more likely that a decision may be affected and the person should withdraw. The key question to be answered is whether the member is able to render a decision unaffected by whatever knowledge they possess or relationship they have with the party or parties.

Members should disclose any facts that might call their objectivity and impartiality into question. If any member believes they cannot render a fair and impartial decision, they should withdraw from the Committee (recusal). If there is any question of conflict of interest raised by any member but the member believes they can fairly decide the matter, the matter should be disclosed to the grievant and respondent so that any objections may be resolved before any substantive decisions are made regarding the grievance. This provides the parties the opportunity to either object to the continuance of a Committee member or to waive any objection. This process may eliminate any party's future challenge to the Committee's decision based on conflict of interest. If the matter remains unresolved, the Chair determines the matter of continued service.

Note that to avoid conflict of interest, the grievance procedure does not permit faculty who have participated in promotion or tenure review of the grievant to serve on a grievance Committee where the subject of the grievance relates to the promotion or tenure decision.

1.4 No ex parte communications. The Committee's responsibility is to make findings of fact and resolve the grievance based solely upon the evidence presented to them at the hearing. Committee members may not gather their own evidence or speak to a party or other persons regarding the grievance outside of the grievance hearings. All communication related to the grievance should be done at meetings at which both parties have been provided the opportunity to be present or through correspondence with all parties receiving copies. All correspondence between the Committee and any party is normally be done by the Chair with copies to all parties. If the Committee believes that there is a witness who can provide information pertinent to the grievance, the Chair may suggest to the parties that one or both call the witness to testify at the hearing in the presence of both parties or the Chair may make those arrangements.

2. Review of grievance petition to determine jurisdiction to hear the matter. Once the procedures have been discussed and potential conflicts of interest resolved, the Committee must review the grievance and make a jurisdictional determination as to whether the grievant has stated a grievable matter and fulfilled the requirements necessary for the matter to proceed to a hearing. The Committee should address the following jurisdictional issues:

2.1 A grievance must be filed against a proper party and it must present a grievable matter within the jurisdiction of the Committee?

2.1.1 Is the grievance subject to another university procedure or within the jurisdiction of another university Committee?

Comment: There are a number of grievance procedures available within the university community. The Grievance Procedure for Faculty, SAAO Tier II and EPA Professionals is the default procedure, i.e. it is the procedure that is available only if there is no other applicable procedure for the subject matter of the grievance. If the grievance is subject to another process, then it must be dismissed. See section 2.2.c. of the Grievance Procedure.

2.1.2 Is the grievance challenging the non-renewal, non-reappointment, or non-extension of a contract upon expiration of an existing contract?

Comment: A grievance challenging these decisions must be dismissed unless filed by a tenure track faculty member, a SAAO Tier II employee, or an EPA professional employee. If filed by a tenure track faculty member, a SAAO Tier II employee or an EPA Professional employee, the grievance is limited to the grounds specified in section 2.4 of the grievance procedure. If the grievance is based on grounds other than those specified in section 2.4, it must be dismissed. See section 2.2 b and section 2.4 of the Grievance Procedure.

2.1.3 Does the grievance meet the following criteria?

a.) Is the grievance filed against an administrator?

b.) Does the grievance statement challenge a decision made by the administrator that is adverse to the grievant?

c.) Does the grievance statement allege either that the decision 1) violated university policy, regulation, rule or practices or 2) was otherwise unlawful or without a rational basis?

Comments: Grievances may be filed only against an administrator who has made a decision that adversely affects the grievant. (Grievance Procedure, Section 2.1). Most grievances will be filed against the grievant's unit head, Dean, or Provost. A grievance normally may not be filed against another faculty member or group of faculty members.

A grievant must have standing to raise the grievance and the matter must be one that is capable of being remedied. In other words, the decision that is being grieved must be one that adversely affects the grievant and can be remedied. Note that under section 2.3 of the Grievance Procedure that a grievance other than a grievance appealing a non-reappointment of a tenure track position must be dismissed if the grievant is no longer employed, unless the Chancellor upon receiving the Committee's recommendation for dismissal determines otherwise.

Section 2.2 b, 2.3, and 2.4 limit the subject matter of what can be grieved and what cannot be grieved depending upon the employment classification of the grievant. The Committee must review the employment status of the grievant and the specific grounds of the grievance to determine whether the action being grieved is one that is properly grievable. If the grievance contains allegations that are not grievable, those allegations must be dismissed. Note that one of the grounds listed in 2.4.1 is 'personal malice as defined in UNC Policy.' UNC policy defines 'personal malice' as dislike, animosity, ill-will or hatred based on personal characteristics, traits, or circumstances of an individual that are not relevant to valid University decision making. (Emphasis supplied). Examples of personal malice include negative reactions with respect to an employee's anatomical features, social acquaintances, height or weight.

For cases where the grievable subject matter is not specifically limited, the grievance must allege that a decision was made improperly or unfairly. Improperly means one that violates a specific university rule, regulation, policy or practice. Unfairly means one that is arbitrary or capricious (no rational basis for the decision) or unlawfully discriminatory (violates state or federal civil rights laws). If the grievant has not provided sufficient information to show that the matter is clearly grievable, the Committee may dismiss the grievance or give the grievant the opportunity to amend the grievance if it appears likely that such information might be provided.

2.2 Was the grievance timely filed?

Was the grievance petition filed within sixty calendar days of the decision being grieved or within an extension of time granted by the Chair of the faculty.

Comment: Grievances must be filed within sixty calendar days of the decision being grieved. Time deadlines are imposed to avoid delays that can result in loss of memory, unavailable witnesses and unavailable documentation. Timely filing notifies respondent to the grievance while memories are fresh and documentation can be preserved and available witnesses can be notified.

If the grievance was not filed within the requisite sixty days, the Chair of the faculty may waive the requisite sixty day filing date for significant extenuating circumstances. (Grievance Procedure, Section 3.2). Significant extenuating circumstances are generally those circumstances that are beyond the control of the grievant and thus have affected the grievant's ability to timely file. Examples would include inability to file because the grievant is in the hospital or is otherwise unaware of the decision because of events beyond the faculty member's control.

The sixty day period may be extended if the parties have agreed to engage in mediation. Section VI.A of the Mediation Procedure for Faculty and Staff suspends the time deadlines for filing or continuing a grievance as follows: (1) If a formal grievance petition has not been filed but mediation is requested within the requisite time period for filing the grievance petition, the time period for filing the grievance petition is suspended for the duration of the mediation process. If the mediation does not result in resolution of the grievance, the grievance petition must be filed within ten working days of termination of the mediation process; (2) If the parties agree to mediation after a grievance petition has been filed, the grievance hearing will be suspended for the duration of the mediation process.

2.3 Has the grievant followed the preliminary steps requisite to filing the grievance?

2.3.1 Has the grievant met with the department head or Dean to attempt informal resolution of the grievance before filing the grievance?

2.3.2 Has the grievant reviewed his or her personnel file.

Comment: Before a grievance can be filed the grievant should attempt to resolve the grievance with the department head and Dean. (Grievance Procedure, Section 3.1) If the matter is not satisfactorily resolved, the grievance may then proceed through the grievance process. The purpose of this requirement is to provide an opportunity to resolve the grievance informally without involving the time of faculty who volunteer their service to help resolve grievances through a more formal process.

If the grievance has been timely filed and is otherwise a grievable matter, and if respondent challenges the lack of an attempt at resolution, the Committee may for good cause permit the parties an opportunity to explore informal resolution. If the matter is not resolved within a time frame set by the Chair, the hearing of the grievance should go forward. If the grievant does not show good cause for not having attempted informal resolution, the grievance may be dismissed.

In certain cases, the Committee may decide that it needs additional information to decide these issues. In such event, the Chair may request in writing additional information from the parties (or the Chair of the Faculty in the event that there is a challenge to an extension of the filing deadline) and/or hear from the parties directly at the pre-hearing conference before deciding the matter. The written request and any responses must be shared with all parties.

After reviewing the jurisdictional matters the Committee must make a decision on jurisdiction and notify the parties. While the grievance procedure requires a written report in the case of dismissing a grievance, since either party may appeal an adverse decision to the Chancellor, a written decision should be prepared in either event setting forth the reasons for the Committee's decision and provided to the parties. In cases where the grievant has not stated a grievable matter but the grievant has provided information that indicates that the grievant can do so with an amended grievance petition, the Committee may permit the amendment.

Before the initial meeting is adjourned, the Committee Chair may discuss potential dates for the pre-hearing conference. If available dates for grievant and respondent are known, the date may be set at this meeting. (Prior to both the initial Committee meeting and the pre-conference hearing, the Faculty Senate administrative assistant should contact the grievant and the respondent to discuss their availability for the pre-hearing conference and hearing and alert the respective individuals to bring their calendars to their respective meetings.)

B. The Pre-hearing Conference

The purpose of the pre-hearing conference is to discuss procedures that will be followed in hearing the grievance. It also allows the opportunity to review the grievance to resolve any jurisdictional issues and to handle any questions of potential conflict of interest that may have been identified and remain unresolved. These matters should be addressed in the following order:

1. Conflict of Interest. After identifying the parties who are present and explaining the purpose of the pre-hearing conference, the Chair should first address any potential conflicts of interest. If no conflict of interest has been previously raised by either a member or a party to the grievance, the Chair should inquire as to whether the parties are satisfied with the Committee as constituted. If a potential conflict has been raised, it should be addressed at this time.

2. Jurisdictional Issues. Upon resolution of any potential conflicts of interest, the Committee should next resolve any jurisdictional issues remaining from the initial meeting of the Committee. If the Committee determines that it has jurisdiction to hear the grievance and no appeal is taken, the specifics of the grievance are next explored with the parties to clarify and frame the issues that will be decided by the Committee at the time the grievance is heard. If the pre-hearing is primarily for the purpose of considering jurisdictional issues, items 3 through 5 set forth below may be deferred until the conclusion of the appeal, at which time the pre-hearing may be continued for purposes of matters relevant to hearing the grievance.

3. Issues in Dispute. At the pre-hearing conference, the Committee does not hear evidence or arguments about the merits of the grievance but rather seeks to elicit from the parties the specific matters in dispute. The grievant should be asked to specify what specific decision is being challenged, to identify what university policies, procedures or practices are at issue, and what relief is requested, if this has not been previously set forth in the grievance statement or addressed in connection with the jurisdictional review.

4. Agreed upon statement of facts relevant to the issues raised in the grievance statement and response. The Chair may also explore whether the parties can agree to a statement of facts. Identifying the issues in dispute and reaching an agreement on the facts can reduce the length of time required to hear the grievance as the testimony of witnesses or introduction of documentation at the hearing may not be necessary. Identifying the issues in dispute also permits the respondent to prepare a response directed to specific issues in dispute and enables the Chair to set time limits on testimony, determine how many witnesses will be heard and the length of time necessary to hear the grievance. If the parties agree to develop a statement of agreed upon facts, the facts should be introduced as a joint exhibit by the grievant and respondent at the beginning of the grievance hearing.

5. Procedural Decisions: As many procedural issues as possible should be addressed at the pre-hearing conference:

a.) length of hearing: The parties should be asked to estimate the time they will need to present their case. Estimates should cover both direct and cross-examination of witnesses. This will enable the Chair to determine the number of hearing dates needed to hear the grievance and to set the hearing dates. The Chair of the Committee may limit the number of witnesses, documentary evidence and the time for each party to present their respective cases based upon the discussion that occurs at this conference; each party however must be given an equivalent time to present their case. The Chair should advise the parties that repetitive or duplicative testimony will be prohibited; for example, testimony may not be necessary if the parties are able to submit an agreed upon statement of facts.

b.) order and presentation of evidence: The Chair may discuss with the parties any special scheduling needs, such as the need to accommodate potential witnesses whose availability to testify may be affected by the hearing schedule. To accommodate the parties, the Chair may agree to take witnesses out of the usual order specified in the grievance procedure to meet anticipated scheduling problems.

c.) third party observers: The Chair should explain the role of the observer and ask the grievant to identify any third party observer who will attend the grievance hearing on grievant's behalf. Respondents may also be asked whether they will have a third party observer (if the grievant has elected to have a third party observer), however, respondents may elect to wait until immediately prior to the commencement of the hearing to respond and identify an observer.

d.) exchange of witness lists and documents: The Chair of the Committee may notify the parties of any time deadlines for the parties to exchange witness lists and documents that they intend to introduce at the grievance hearing. There should be no surprises at the hearing. The Chair may prohibit the introduction of testimony of witnesses that have not been identified or documents that have not been provided to each party in advance of the hearing unless the evidence is newly discovered and could not have previously been discovered with reasonable due diligence.

Documents should be numbered sequentially and marked as exhibits by each party introducing the document; e.g., Grievant's Exhibit 1, Respondent's Exhibit 1, Parties Joint Exhibit 1, Committee Exhibit 1. The exhibit number should be written on the first page of each exhibit. If the grievant and respondent label the exhibits at the time they are exchanged between the parties, it will facilitate and eliminate confusion when they are introduced into evidence at the hearing. When referring to portions of the exhibit, the party or witness should also refer to the page and paragraph or section of the document.

e.) set dates for the hearing: Available hearing dates should be discussed and set by the Chair.

C. The Grievance Hearing

The purpose of the grievance hearing is to provide the grievant and respondent the opportunity to present their respective cases to a Committee that will make findings of fact and recommendations regarding the grievance. The hearing is composed of four discrete segments: 1) opening statements of each party; 2) presentation of the grievant's case; 3) presentation of the respondent's case; and 4) closing arguments of each party. Each segment is briefly described below. See also Section 8 of the Grievance Procedure setting forth detailed guidelines for the conduct of the hearing.

1. Opening Statements. Opening Statements from grievant and respondent are invited after the Chair's introductory remarks. (See Appendix II for Chair's checklist of items to be addressed in the Chair's opening remarks.) Each party makes a brief summary of what their respective positions are regarding the grievance. The opening statements provide a framework or context for the evidence that each party will present. Opening statements are not substitutes for testimony or argument. Rather they are brief outlines of what each party expects to present through testimony and documentary evidence. Chairs should place a time limit on opening statements and then proceed to the evidentiary phase of the hearing, i.e., presentation of the grievant's case and presentation of the respondent's case.

2. Grievant's Case. The grievant presents his or her case first through the testimony of witnesses and the introduction of documentary evidence. After each witness, the respondent has the opportunity for cross-examination of the grievant's witness. Committee members may also ask the witness questions. At the conclusion of the grievant's case, the Committee must decide if the grievant has presented sufficient credible evidence to sustain the grievance. If the grievant has not done so, the Committee must dismiss the grievance after the grievant's case. If the evidence presented does sustain the grievance, then the respondent's must go forward with respondent's case.

3. Respondent's Case. The respondent's presentation proceeds in similar fashion with the grievant cross-examining respondent's witnesses. The Committee may also ask questions of respondent's witnesses. At the conclusion of the Respondent's case, closing statements from each party are then invited by the Chair.

4. Closing Statements. Closing statements provide each party with the opportunity to summarize the evidence and to argue their respective positions based upon the evidence presented. Since the grievant and respondent have already testified and presented their documentary evidence, closing statements may not be used to introduce new evidence. After the closing statements, the hearing concludes and the Committee recesses to deliberate.

D. Deliberations

The Committee deliberations take place in closed session after the hearing has been recessed. The deliberative phase allows the Committee to discuss all the issues that have been raised during the hearing and the evidence presented by each party in support of their case or in rebuttal to the case presented by the other party. Conflicting evidence is evaluated and the Committee determines which facts have been proven. The facts are then applied to the issues and the Committee determines what recommendations it should make regarding the grievance.

After the hearing has concluded, the Committee may not talk to any of the parties or other persons, including previous witnesses who have testified. If additional material testimony is needed, the Chair may reconvene the hearing for such purposes. If the matter is straight forward and can be responded to in writing, the Chair may solicit such a response provided that all parties have the opportunity to comment on the respective responses and all responses are shared with each Committee member.

1. Role of the Committee Chair

Under the University's grievance procedure, the Chair does not vote but rather facilitates the discussion that occurs among the Committee members who actually make the decision. The Chair may organize the manner in which the deliberations proceed, introduce the issues, and summarize those items upon which consensus appears to have been reached. The Chair has responsibility to prepare a written report of the Committee's decision. The Chair may receive assistance from member(s) of the Committee and should involve all members in reviewing and approving the final report. Any member who disagrees with the Committee's decision may prepare a minority report.

2. Resolving Conflicting Testimony

In some cases, there may be conflicting evidence and the Committee will need to evaluate the credibility and weight of that evidence. Conflicting evidence may be the result of deliberate dishonesty; other times it may be the result of an accidental omission or a faulty memory. In either case, the Committee must evaluate the evidence and determine the truth of material evidence. A witnesses demeanor, his or her relationship to the party for whom the witness is testifying, the consistency of the witnesses testimony with prior communications, corroboration of the testimony by others, and similar factors enable the Committee to determine the credibility of the evidence. (See A Guide to Conducting a Hearing in a Higher Education Setting, "How to Evaluate Conflicting Testimony", page 39.)

E. Writing the Decision

The written report of the Committee's decision must set forth the Committee's findings and recommendations. Specifically, '[t]he report should state a separate finding for each particular issue of the grievance, should make findings that resolve the material issues of fact that have been disputed, address any minority views and provide a recommendation for disposition of the grievance.' The Committee's report should contain sufficient information to permit the Chancellor to understand the issues in the grievance, the facts as determined by the Committee based upon the credible evidence submitted by the parties during the grievance hearing, and the rationale for the Committee's decision and recommendation(s). The report should address the following matters:

1. The composition of the grievance Committee.

2. The process followed by the Committee. A description of the process should set forth the dates the Committee met and the length of time spent in hearing the case and in deliberating to reach a decision.

3. The identity of all parties to the grievance.

4. A description of the grievance (including what policies, regulations, rules or practices were alleged to be violated).

5. The findings of fact that are relevant to each issue in the grievance. The findings of fact basically set forth what happened. There may be conflicting evidence on various factual issues that the Committee will resolve in its deliberations and these factual conflicts should be discussed with the Committee's ultimate judgment of why the Committee accepted or rejected specific evidence. The parties, the Chancellor and any subsequent reviewer needs to know that the Committee considered the relevant and material evidence and made factual findings that are supported by the evidence in the record. A recitation of conflicting evidence in the record does not suffice. The Committee must actually decide which evidence it finds as true.

6. Recommendation(s). Recommendation(s) addressing what action the Committee has decided should be taken. The recommendation must be supported by the facts and provide a justification. While the Chancellor or Board of Trustees or Board of Governors have the authority to draw different conclusions, a carefully reasoned decision is more likely to be persuasive and upheld. As stated in the grievance procedure:

'The Committee should be careful not to simply substitute its judgment for that of the respondent(s) (e.g., the Committee should not recommend that the grievant get tenure or a raise simply because the grievant's professional record could have justified a tenure appointment, or a greater pay raise). Rather, the Committee should decide if the decision being grieved was reached for improper or unfair reasons (e.g., was it based on irrelevant factors such as age or race or political views, or were personnel procedures violated to the prejudice of the grievant). '

7. Minority report(s) if any. The report shall include minority views of Committee members, if any, and shall note the intent of any Committee member to file a separate report if any member wishes to do so. Minority reports, if any, shall be appended to the Committee's report.

F. The Official Record

As set forth in Section 9.4 of the Grievance Procedure, the Chair is responsible for transmitting the record of the proceedings along with the Committee's final report and recommendations. The official record of a grievance hearing consists of "all correspondence pertaining to the grievance and every item, piece of information, document and exhibit that was either submitted to or given consideration by the Committee, along with the tape or court reporter's transcript of the hearing. All information relevant to the Committee's procedural rulings, factual findings, recommendations, and any other aspects of its final report should be included in the Official Record." (Grievance Procedure, Section 11). The Chair should prepare a table of contents identifying the contents of the record so that every document and record can be easily identified and located.

Any evidence that the Committee excluded from consideration should be separately identified and a record the Committee's reasons for excluding the evidence must be included in the record.

G. Discharge of the Committee and/or Further Proceedings

Upon completion of the Committee's work, the Committee will be discharged by formal notice from the Chancellor.

In cases where the Committee's report is forwarded to the Chancellor for final decision, the Grievance Procedure provides that the Chancellor may accept or reject any or all findings and recommendations of the grievance Committee, may remand the matter to the Committee for further consideration of the grievance or may seek clarifying information from the Committee. If the Chancellor accepts the Committee's findings and recommendations, the Committee is so notified and discharged from further service.

If the Chancellor rejects any of the findings or recommendations, the Committee is provided with the Chancellor's decision and an opportunity for the Committee to respond in writing to the decision. Upon final action by the Chancellor, the Committee is discharged from further service.

If the Committee's decision is unclear or additional proceedings are deemed necessary by the Chancellor, the matter will be remanded with instructions to the Committee for further action. For example, the Committee may be asked to hear additional evidence and re-evaluate the decision, or to clarify portions of the Committee's decision. Once the remanded matters are addressed, the Committee is notified and discharged as set forth above.

APPENDIX I

NCSU Grievance Procedure for Faculty and Non-faculty EPA Employees

APPENDIX II

UNC General Administration Memorandum: The Role of University Counsel in the Grievance Process, dated August 18, 1994

APPENDIX III

Chair's Checklist

1. Chair's checklist of tasks for initial meeting with the Committee:

1.1 Before the meeting:

1.1.1 if Committee legal counsel is desired, contact the Office of Legal Affairs for assignment of an attorney;

1.1.2 alert the Faculty Senate administrative assistant to contact the parties and Committee members prior to the initial meeting of the Committee to ascertain available dates for the pre-hearing conference and to ask all Committee members to bring their calendars to the initial meeting; set date and location of the initial meeting;

1.1.3 notify Committee members and Committee counsel of initial meeting date and location.

1.2 At the meeting:

1.2.1 convene and Chair the meeting;

1.2.2 review the grievance process;

1.2.3 discuss role and responsibilities of the Committee;

1.2.4 address any potential conflicts of interest;

1.2.5 have Committee review the grievance statement and request for dismissal, if received, and make jurisdictional determinations;

1.2.6 if grievance is not dismissed, determine available dates for the pre-hearing conference and set date and location.

1.3 After the initial meeting:

1.3.1 notify grievant and respondent(s) of jurisdictional determinations of the Committee;

1.3.2 if the grievance is not dismissed, forward a copy of the grievance statement to the respondent and request a written response within two weeks;

1.3.3 upon receipt of respondent's response, provide copies to Committee members and grievant;

1.3.4 notify in writing the parties, Committee members and Committee counsel of pre-hearing date and location.

2. Chair's checklist of tasks for the Pre-hearing Conference:

2.1 Before the Pre-hearing Conference

2.1.1 upon receipt of the respondent's response to the grievance statement, forward copies to each Committee member and schedule the pre-hearing conference (within one week of receipt of respondent's response to the grievance); notify all parties and members of the Committee and Committee counsel of the pre-hearing date and ask them to bring their calendars to the pre-conference hearing for purposes of determining available hearing dates;

2.1.2 arrange for the pre-hearing to be taped or transcribed;

2.1.3 alert Faculty Senate administrative assistant to schedule the pre-hearing and notify all parties and Committee counsel in writing.

2.2 At the Pre-hearing Conference:

2.2.1 identify the grievance before the Committee and briefly state the purpose of the pre-conference meeting: to review the grievance to identify and focus the issues, to determine any procedural issues that need to be addressed including any potential conflicts of interest of Committee members or amendment of the grievance, to review the procedures that will be followed in the hearing, and to set hearing dates;

2.2.2 ask the parties to the grievance and Committee members to introduce themselves for the record. Any third party observers present should also be identified;

2.2.3 note that the hearing is being taped and that gestures or nods cannot be recorded by tape (or if the hearing is transcribed, can be misinterpreted by the court reporter); instruct the parties that in order to ensure that the record accurately reflects all of the testimony, all communications should be verbal and that testimony will be suspended to change the tape from time to time so that all testimony can be accurately recorded for the record;

2.2.4 ask the parties and Committee members whether they have received copies of the grievance procedure, the grievant's grievance statement and the respondent's response;

2.2.5 address and resolve any potential conflicts of interest on the part of Committee members (Committee members should disclose any personal interests or knowledge of the case or any witnesses that may be called to testify). Confirm that the parties are satisfied with the Committee as constituted;

2.2.6 review grievance statement and response with the parties to clarify and focus grievance issues and requested redress; handle any preliminary procedural issues that may not have been resolved at the orientation conference (e.g., amendment of the grievance or dismissal for failure to state a grievable matter) or that have been raised by either party prior to the pre-hearing conference;

2.2.7 review procedures that will be followed in the grievance hearing (order and presentation of witnesses, labeling and introduction of documents, sequestration of witnesses, etc.) and answer any questions from the parties;

2.2.8 request parties to identify whether they will have a third party observer, if not yet identified;

2.2.9 handle other hearing logistics (e.g., discuss and set hearing dates*; set dates for the exchange of witness lists and documentary exhibits between the parties, review requirements for the labeling of exhibits, address any limitations on the number of witnesses, the length of each witnesses testimony, the time for each party to present their respective cases, etc.).

2.3 After the Pre-hearing Conference:

2.3.1 notify the parties in writing of the dates and location of the hearing, and any deadlines for exchange of witness lists, and any other pertinent matters agreed to at the pre-hearing conference;

2.3.2 notify Committee members and Committee counsel of the dates and location of the hearing;

2.3.3 alert the administrative assistant to arrange for the presence of a court reporter to transcribe the grievance hearing;

2.3.4 The hearing musts begin within 4 weeks of the pre-hearing conference unless there are significant extenuating circumstances. (Grievance Procedure, Section 7.1)

3. Chair's checklist for the hearing:

3.1 Before the hearing: notify all parties and Committee Counsel of the hearing dates; arrange for the hearing to be transcribed by a court reporter.

3.2 At the hearing:

3.2.1 convene and Chair the grievance hearing;

3.2.2 open the hearing by stating the grievance before the Committee; ask participants to introduce themselves and any observers accompanying them; ask Committee members to introduce themselves. Remind parties that the hearing is being transcribed and to ensure that the record accurately reflects all of the testimony, all communications should be verbal. Gestures and nods are not always picked up by the court reporter;

3.2.3 Hear testimony from grievant with cross-examination by respondent and Committee members; determine whether grievant's evidence is sufficient to state a grievable matter justifying remedial action. If not, grievance is dismissed; if grievable matter is established, hear respondent's case with cross-examination by grievant and Committee members;

3.2.4 make all procedural and evidentiary decisions relating to the conduct of the hearing including the order, number of witnesses, and length of their testimony; the order and procedure for questioning the parties and their witnesses; the admissibility of questions and evidence; and compliance with hearing procedures; questioning that is irrelevant, immaterial, unduly repetitious or abusive may be prohibited;

3.2.5 determine who may be present during the hearing of the grievance;

3.2.6 determine whether there is any additional information that the Committee might wish to hear and request that information;

3.2.7 permit each party to make closing statements (Grievant makes closing statement, followed by respondent, and a last statement by grievant, Grievance Procedure, Section 8.1.6);

3.2.8 recess the hearing.

3.3 After the hearing:

3.3.1 hold deliberative session with the Committee for the Committee discuss the evidence and reach a conclusion; ensure that discussion covers all issues, the material facts pertinent to each decision, and the rational for the Committee's findings of fact and recommendations sufficient to enable the Chair to prepare the final report; Chair may request assistance from one or more Committee members in preparing the written report; set a date for the Committee to reconvene to review draft of Committee's decision and to finalize the Committee's report;

3.3.2 compile the official record of the grievance ensuring that all correspondence and documentary evidence is appropriately labeled and identified; prepare a record identifying any evidence that is excluded and the reasons for the exclusion;

3.3.3 forward the Committee's report and the official record to the parties and the Chancellor and Chair of the faculty as set forth in the grievance procedures; note the special provisions that apply to grievances other than appeals of non-reappointment in cases where the Committee recommends adjustment in favor of the grievant (Section 9.4.2 of the grievance procedure);

3.3.4 convene and Chair any subsequent remand of the grievance to the Committee.

[1] Also recommended for Committee Chairs is "A Guide to Conducting a Hearing in a Higher Education Setting", by Robert E. Bienstock, The Higher Education Administration Series, College Administrative Publications, Inc., 1996.